By Jose Felix Pinto-Bazurco*
Since its founding in 1979, the Inter-American Court of Human Rights (the Court) has issued 24 advisory opinions. Although it has previously recognized the existence of a relationship between environmental protection and the enjoyment of other human rights, it has done so only in relation to the territorial rights of indigenous and tribal peoples. A new opinion of the Court, made by a request from Colombia, is the first to recognize an autonomous right to a healthy environment and nations’ extraterritorial responsibility for environmental damages under the American Convention on Human Rights (the Convention). This new opinion allows for the possibility that a person affected by environmental damage generated in another country, including damage caused by climate change, could present a case before the Court as long as the respondent State has not complied with the obligations presented by the Court.
The Considerations of the Court
The Court’s opinion contains two interesting aspects. First, it recognizes that the right to a healthy environment is an autonomous right, which must be protected. Second, it recognizes that States are responsible for the environmental damage they cause, whether that damage occurs beyond its borders or within them.
The Court’s recognition that the right to a healthy environment is an autonomous right makes enforcement or protection of that right justiciable in cases before the Inter-American Human Rights System under Article 26 of the Convention. Two of the seven judges who voted in favor of the decision declined to join this finding, noting that to find a right to a healthy environment justiciable would be inconsistent with the principle that no State can be taken to an international tribunal without their consent.
Regarding extraterritorial responsibility, the Court concluded that States must take measures to prevent significant damage to the environment, inside or outside their territory. The Court noted specific obligations to carry out environmental impact studies, cooperate with potentially affected States, and guarantee access to information. With regard to the obligation to prevent environmental damages, the Court specifies that this obligation is not contingent on the level of development of a State. That is, the obligation of prevention applies equally to developed States as to developing States. However, the Court notes that the particular factual and legal circumstances of a case determine whether a State’s activities fall within the jurisdiction of the Court.
Effects of the Advisory Opinion
The advisory function of the Court is a service available to all members of the Inter-American human rights system and is intended to facilitate fulfillment of international commitments on human rights. The opinions of the Court are binding upon all States that have accepted the jurisdiction of the Court.
The Court specified that the content of its opinion does not apply exclusively to the States involved, a determination which enables other States or citizens of any country that has recognized the jurisdiction of the Court to file claims regarding environmental harms that impact their human rights. In such a case, the Court would need to evaluate whether the respondent State has complied with three types of obligations:
- Obligations to Prevent Environmental Damages: States have a number of responsibilities related to preventing environmental obligations. They must: 1) issue regulations to prevent damages, 2) establish contingency plans to minimize the possibility of major environmental accidents, 3) mitigate significant damage that has already occurred, and 4) carry out environmental impact studies under the conditions indicated by the Court. The Court requires that an environmental impact study is conducted by an independent entity and occurs prior to the activity being evaluated. Each environmental impact statement must address cumulative impacts, allow the participation of interested persons, and respect the traditions and culture of indigenous peoples.
- Obligations to Cooperate: The Court must evaluate whether the respondent State has: 1) cooperated in good faith with States and individuals potentially affected by environmental damage, 2) notified potentially affected States that a planned activity under their jurisdiction could generate a risk of significant transboundary damages and of environmental emergencies, and 3) consulted and negotiated in good faith with States potentially affected by significant transboundary harm.
- Obligations to Provide Information, Justice, and Public Participation: Finally, the Court must evaluate whether the respondent State has provided: 1) access to information related to possible effects on the environment, 2) the opportunity for citizens to publicly participate in making decisions and policies that may affect the environment, and 3) access to justice through national courts in regard to their environmental obligations.
On this last obligation, the Court critically established that States have an obligation to guarantee access to justice for persons potentially affected by transboundary damages originating in their territory without discrimination based on nationality, residence, or the location of the environmental damage.
A New Potential Pathway for Climate Lawsuits
The advisory opinion may also open the door for future suits over climate-related harms. In the same way that this advisory opinion provides a basis for subjects affected by environmental damage to present a case before the Court, a party negatively affected by climate change could also use it to support a case before the Court. The opinion’s recognition of States’ responsibilities for harms beyond their borders lends further viability to such a strategy. Another element of the opinion lending support for a climate suit is the Court’s emphasis that States must act in accordance with the precautionary principle when there are plausible indicators that an activity could cause serious and irreversible damage to the environment, even when there is scientific uncertainty.
The advisory opinion may present an additional avenue for the growing number of climate-related lawsuits worldwide—see the Sabin Center’s Climate Change Litigation Databases for examples. The majority of claims made against governments deal with the review of environmental assessments and the granting of permits, usually for infrastructure projects. However, a surge of recent lawsuits pertain to the intersection of climate change and the right to a healthy environment.
The consequences of climate change affect the effective enjoyment of human rights, a reality that the Court recognized with this advisory opinion. Consequently, the Court can now potentially accept cases related to climate change, provided that the filing party has exhausted internal remedies within a State and demonstrated that the State has failed to meet the obligations indicated above.
*Jose Felix Pinto-Bazurco joined the Sabin Center for Climate Change Law in January 2018 as a David Sive Visiting Scholar. His research focuses on the legal impacts of implementing the Paris Agreement in Latin American countries. He specializes in international environmental law and has experience in public administration, the private sector, and research. He has followed the international climate change process as a delegate, a researcher, and a member of the UNFCCC Secretariat.